The term “Seller” shall include all suppliers of Goods and Services for Buyer’s designated benefit. The term “Buyer”
means Atlas-SSI, Inc and its affiliate companies and their subsidiaries. The term “Goods” means the materials,
equipment or supplies, which are the subject matter of the Purchase Order, (hereinafter “Order”). The term “Services” means labor related to Goods as may be provided from time to time by Seller or its subcontractors including labor at Buyer’s or third-party premises.
Seller, by accepting this Order, agrees to the following conditions of the purchase:
IMPORTANT: The provision set forth in the face of the Purchase Order (including any written requisition, instructions, or other documents issued by Buyer in connection with this order, which items are hereby incorporated by reference and shall become part of this Order) and the Terms and Conditions stated on the reverse side of the Order (reprinted here) shall constitute the complete and exclusive statement of the terms of the Order as agreed between Buyer and Seller. Any additional or different terms proposed by Seller in any quotation, acknowledgement or other documents are hereby deemed to be material alterations to this Order, and Buyer hereby gives notice of objection to such proposed terms and they shall be void. Any modifications or amendments to these Terms and Conditions must be in writing and executed by both Buyer and Seller in a separate signed document. These Terms and Conditions shall supersede any and all previous verbal or written representations, agreements and commitments in connection with this order.
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ACCEPTANCE:
By commencing work in fulfillment of the requirements of this Order, Seller shall signify acceptance of all provisions of the Order, including these Terms and Conditions
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PRICE AND PAYMENT:
In the absence of indication of price by Buyer, Seller must not fill this Order at a price higher than last quoted or charged to Buyer without Buyer’s written consent. Seller represents that the prices charged for these items or service covered by this Order are not higher than prices charged for similar terms and conditions to other purchasers and that the prices comply with the applicable government regulations in effect at the time of Order placement, sale or delivery. Buyer expressly agrees to the VENDOR MANAGEMENT PROGRAM terms and conditions contained within ATLAS-SSI.COM/VENDORMANAGEMENTPROGRAM.
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PRICE ADJUSTMENT:
Notwithstanding paragraph 3 above, any general price decrease announced by Seller or any decrease in Seller’s cost shall automatically result in a reduction of the price charged to buyer. Buyer shall have the right to audit price and costs upon notice to Seller and shall be entitled to retroactive price adjustments and a refund based on adjustable price.
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PAYMENT TERMS:
Buyer will pay Seller Sixty (60 days) from the date of acceptance of the goods or receipt of the invoice whichever is later
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CHANGES:
The Buyer reserves the right to change by written or electronic notification any of the following: (a) Specifications, drawings and data incorporated in this Order where the items to be furnished are to be specially manufactured for the Buyer; (b) quantity; (c) methods of shipment or packaging; (d) place of delivery; (e) time of delivery; or (f) any other matters affecting this Order.
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WARRANTIES:
Seller warrants that Goods subject to this Order shall conform to specifications, drawings, samples and other descriptions furnished or adopted by Buyer, shall be new and unused, free from defect in workmanship and material, be fit and sufficient for the purpose intended, merchantable, and shall be subject to all warranties express or implied available at Law whether under statue or otherwise. The seller further guarantees the satisfactory operation of the Goods including but not limited to where the relevant requirements have been made known to the Seller with regards to the way in which the Goods are to function in conjunction with other plant equipment. Within a reasonable time after receipt, installation, and commencement of use of the Goods, Buyer may reject and return at Seller’s expense all or any part of the Goods, which are defective or do not conform to this Order. Seller’s warranties of the Goods shall remain in effect the longer of (a) eighteen (18) months from use or eighteen months after Buyer installs and commences using the Goods in its own manufactured products. If during the warranty period Buyer finds that such goods do not conform to Seller’s express or implied warranties, Seller shall promptly repair or replace (at Buyer’s election) all or part of the Goods to make them conform. Upon reasonable request from Buyer, the Seller at its cost and risk shall forward to the location of the furnished item of work, by air freight or other agreed mode of transport, the parts and /or equipment needed to replace the Goods within a reasonable time, Buyer shall have the right to reject and return at Seller’s risk and expense some or all of the Goods/ Seller shall, within 30 days of the return of Goods, promptly refund all monies previously paid by Buyer for the purchase of the defective or non-conforming Goods including any freight. Any monies not refunded within 30 days will thereafter be subject to interest charged at the maximum rate allowable by law.
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FAILURE:
The failure of the Goods hereunder to meet the quality herein specified or, except to the extent provided in Section 9 hereof, the failure of seller to make any delivery in the quantity or within the time specified or to comply with any instructions given to it in writing by Buyer or any breach by Seller of any other Terms and Conditions hereof shall give Buyer the option to refuse acceptance and to cancel this Order (including Buyer’s payment of obligations) as to some or all of the Goods. Buyer shall give written notice to Seller advising it of the breach and requiring Seller to make good within such reasonable period as Buyer may determine. Upon any such failure Buyer may place an Order elsewhere for an equal or lesser quantity of Goods of the same or substantially equal quality and charge Seller with any loss so incurred. Any failure of Buyer to exercise this option with respect to any portion of this Order shall not constitute a waiver of Buyer’s rights nor release Seller from any of its obligations under this Order.
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FORCE MAJEURE:
In the event of any clause or condition beyond the reasonable control of either part hereto that interferes with a party’s obligations hereunder, the affected party shall promptly notify the other party and the parties hereto shall be temporarily excused from performance hereunder to the extent performance is affected by, and for the duration of, such cause or condition, provided, however, that in the event, that Seller is delayed more than two business days, Buyer may seek to obtain the goods from an alternative source.
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PACKAGING:
(a) Goods shall be prepared, secured and packaged by the seller to ensure adequate protection until received and inspected for transit damage at the place of delivery in this Order. Seller shall be responsible for a loss, damage, costs or expenses incurred or suffered by Buyer as a result of any damage which is attributable to defective and /or insufficient packaging. Packaging shall, at minimum, comply with IVC and DOT regulations, and if for export, the latest Seaship Requirements. (b)Hazardous material or equipment shall not be packaged with that of a harmless nature. Containers of hazardous material or equipment must be so marked.
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DELIVERY/RECEIPT:
Goods shall remain under Seller’s ownership and risk of loss until delivered as specified in this Order. Whenever the Seller shall have in its possession property of Buyer, Seller shall be deemed an insurer thereof, shall assume risk of loss, and shall be responsible for it safe delivery to Buyer. The signature of a representative of Buyer, or the person to whom the Seller has been instructed to affect delivery of the Goods, shall be evidence of receipt only and shall not be construed as Buyer’s confirmation or acceptance that the Goods were received in the conditions specified in this Order.
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INSPECTION:
Buyer reserves the right to inspect the Goods at the place of manufacture or fabrication including that of Seller’s subcontractor(s). Inspection or failure to inspect or expedite shall in no way relieve the Seller of its duty with all conditions and warranties under this Order, nor deprive Buyer of any remedy against the Seller.
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INDEMNITY:
(a) Seller will indemnify, release, defend and hold harmless the Buyer from any and all costs, actions, causes of action, claims and demands for, upon, or by reason of any damage, loss injury or suffering which may be incurred or alleged to have resulted from the performance of the Seller’s obligations under this order (including but not limited to, the design, manufacture, marketing, sale, shipment, use, consumption, destruction, repair, maintenance, or return of the goods or services covered by this purchase order. Whether by contract, tort, or otherwise and whether or not such actions, causes of action, claims and demands are caused by contributed to by the sole, joint, contributory or concurrent negligence, omission, strict liability or fault of buyer. Further, Seller will indemnify, protect, defend and reimburse Buyer for all costs, expenses., liabilities, or damages arising from the infringement or alleged infringement of Letters, Patent, Registration, Design, Trade Mark, copyright or other protected right in respect of the material or equipment furnished pursuant to this Order, or by the mode of operation of the equipment so furnished. When the term “Buyer” is used in the context of an indemnified party in this Order, such term shall include Buyer, its co-lessees, co-owners’ partners, joint ventures, agents, insurers, other contractors, subcontractors; and all directors, officers, and employees of the foregoing. Under this Section 13 exceed maximum limits under applicable law, said insurance requirements or indemnity obligations shall be automatically amended to conform to the maximum monetary limits permitted under such law.
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INSURANCE:
(a) Seller shall, at Seller’s sole cost, maintain Comprehensive General Liability Insurance with the limits of at least $1,000,000 combined single limit per occurrence, including but not limited to coverage for public liability (bodily/personal injury, property damage premises coverage), contractual liability for those liabilities assumed under this Order, liability for pollution and cleanup on a sudden and accidental basis, products and completed operations, protective liability/independent contractors work sublet, and with the “care, custody, and control exclusion” deleted. (b) In addition, Seller shall carry, Liability insurance with limits of at least $1,000,000 per accident/occurrence: Automobile Liability Insurance with limits of at least $1,000,000 combined single limit per occurrence; and any other insurance as may be required under applicable law, statute, ordinance or regulations of any government authority. (c) All insurance policies of Seller, including but not limited to those described herein, shall expressly waiver subrogation as to Buyer, shall Buyer as additional insured, and shall be primarily over any insurance maintained by Buyer. If requested by Buyer, Seller shall furnish evidence that the above insurance requirements are met. The term “Buyer”, as used in this Section, shall include all entities and persons included in the definitions of a” Buyer” as set out in Section 13.
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INDEPENDENT CONTRACTOR:
Seller shall perform its obligations under this Order as an independent contractor and not as an employee of Buyer. Seller shall be free of all control by Buyer, its agents or employees, as of the means and methods of accomplishing the end result required by Order.
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CANCELLATION:
Buyer may cancel all or part of this Order at any time.
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IDENTIFICATION:
All Goods, in whatever stage of completion and any part thereof and any materials intended to form part thereof shall be promptly marked as such by Seller as items to which Order refers.
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ASSIGNMENT:
Seller shall not disclose to any third party (except to the extent required by subcontractors or as authorized in writing by Buyer or as required by law or regulation) or use (except in connection with performance under this Order), (a) any design drawings, specifications, technical data or other information relating to the Goods or to Buyer’s business received or acquired directly from Buyer, or (b) the existence of this Order or any details or characteristics of the Goods by description, photograph, model or other representation. All drawings supplied hereunder by Buyer shall remain Buyer’s property and shall able returned to Buyer upon completion or termination of this Order. Seller shall require any permitted subcontractor to comply with the same restrictions and obligations imposed upon Seller by this Section, and Seller shall be liable for the consequences of any breach of this condition.
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TAXES:
Any state or local sales, use or similar taxes authorized in the amount billed must be separately stated and itemized, and it is understood that acceptance of this Order shall constitute an agreement that unless taxes are separately stated and itemized, none are included in the amount billed.
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AUDIT:
Buyer reserves the right to audit the accounts and records of Seller and Seller’s subcontractors’ relation to all material and services pertaining to this Order where Buyer has paid on a reimbursable basis. Seller shall retain all accounts and records relating to all materials and services pertaining to this Order for at least three (3) years after Buyer’s receipt of the goods under this Order. No director, employee or agent of Seller shall give or receive any commissions, fee rebate, gift or entertainment of significant cost or value in connection with this Order or enter into business arrangement with any director, employee or agent without prior written notification thereof to Buyer.
Enforceability/ choice of law/ jurisdiction and venue:
If any part of this Order is judicially declared invalid, void or unenforceable, the remainder of the Order shall not thereby be invalidated or voided, but such part(s) shall be deemed modified to the extent required to make it enforceable, if necessary, the Order shall be deemed to be amended to delete the unenforceable part(s) and the remainder of the Order shall have the same force and effect as if such part(s) had never been included herein. This Order shall be governed by and construed in accordance with the laws of the State of Louisiana, excluding its conflicts of law and choice of law and principles, and exclusive jurisdiction and venue for any disputes arising under this Order shall lie in the district courts of Lawrence County, MS.